Modification. Admission of immaterial evidence, if prejudi- | § 28. cial, held ground for reversal.-Omaha Nat. Judgment of affirmance modified to correct Bank v. Robinson (Neb.) 73. erroneous computation. - Lewis v. Holdrege (Neb.) 656. Errors in admission of evidence or in instructions not prejudicial are no ground for reversal.-Omaha Nat. Bank v. Robinson (Neb.) 73. Admission of incompetent or immaterial testimony is no ground for reversal, if not prejudicial.-McClellan v. Hein (Neb.) 120. An inapplicable instruction is not ground for reversal unless it was prejudicial.-McClellan v. Hein (Neb.) 120. A judgment will not be reversed for the erroneous admission of evidence if the facts had already been testified to.-Barr v. Post (Neb.) 123. On a question of personal injuries received by plaintiff, the rejection of an hypothetical question put to defendant's expert witness held harmless.-Barr v. Post (Neb.) 123. Findings of trial court that a claim of homestead was not established held not contrary to the evidence.-Woolworth v. Parker (Neb.) 1090. A judgment in action tried to a court will not be reversed for admission of incompetent evidence.-National Masonic Acc. Ass'n v. Burr (Neb.) 1098. Admission of inaccurate model of plan of accident held harmless error.-Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169. Failure in making findings of law and fact as required by Rev. St. § 2863, is not ground for reversal of a judgment of dismissal, the evidence showing that plaintiff had no cause of action.-Getty v. Schantz (Wis.) 191. $ 29. Reversal. A judgment will be reversed where the court took from the jury an issue on which the evidence was inconclusive.-Wilkinson v. City of Crookston (Minn.) 797. A judgment will be reversed where trial court submitted to jury an issue on which the evidence was conclusive against plaintiff.-Wilkinson v. City of Crookston (Minn.) 797. Where, under pleadings and evidence, plaintiff was entitled to recover a greater sum than awarded him, if at all, the judgment will be reversed.-Yager v. Exchange Nat. Bank (Neb.) 768. § 30. Mandate and proceedings in lower court. Amendment of judgment of dismissal on the ground that the complaint failed to state cause of action so as to make it one of dismissal only, made after appeal taken, cannot affect plaintiff's rights.-Floberg v. Joslin (Minn.) 557. Where judgment in replevin for a plaintiff had been improperly excluded, on reversal the after execution, on which defendant relied, cause will be remanded for new trial.-McDonald v. Fuller (S. D.) 581. Plaintiff's failure to pay costs on appeal within one year after reversal of his judgment, as required by 2 Rev. St. 1898, § 3072, held not waived by defendant's participating in further proceedings under objection.-Christianson v. Pioneer Furniture Co. (Wis.) 174. 2 Rev. St. 1898, § 3072, reposes no discretion in the trial court to relieve plaintiff from payAdmission in evidence of newspaper publica- ing costs, on reversal of a judgment in his tion containing matter relevant to the issue, favor, as a prerequisite to further proceedings. and tending to inflame the jury, though contain-Christianson v. Pioneer Furniture Co. (Wis.) ing some evidence which may properly be received, is prejudicial error.-Green v. Ashland Water Co. (Wis.) 722. Error in allowing counsel to read law to jury held harmless, unless it appears that objecting party was prejudiced.-Boltz v. Town of Sullivan (Wis.) 870. A finding by the jury that an employé was not guilty of contributory negligence, held not to cure the error of making the question whether he apprehended the danger a part of a question as to whether he had knowledge of the condition of the appliances used.-Dugal v. City of Chippewa Falls (Wis.) 878. Admission of incompetent evidence in trial by the court is not reversible error.-Merriman v. McCormick Harvesting Mach. Co. (Wis.) 880. § 26. Error waived in appellate court. A point not argued on appeal will be passed. -Seery v. Murray (Iowa) 1058. $27. Determination and disposition of cause-Affirmance. Where two defendants join in motion for new trial and in petition in error, the judgment will be affirmed unless there is error prejudicial to both.-Brong v. Spence (Neb.) 54. 174. APPEARANCE. Appeal from municipal court to district court on questions of fact and law constitutes a general appearance, and a waiver of any previous want of jurisdiction. McCubrey v. Lankis (Minn.) 144. Failure to serve a conditional order of revivor goes only to the jurisdiction of the person, and is waived by a voluntary general appearance.-Missouri Pac. Ry. Co. v. Fox (Neb.) 130. Where transcript is so incomplete as not to Of payment, see "Payment," § 2. affirmatively show error, the proper order is affirmance, and not dismissal.-Hesser v. Johnson (Neb.) 406. Where conclusion of jury was the only one permissible under the evidence, the judgment will be affirmed.-First Nat. Bank v. Smith (Neb.) 1073. Where decision on the only claim as to ownership relied on below was sustained on appeal, the judgment will be affirmed, though there was evidence affecting the title on some other ground. -Frei v. McMurdo (Wis.) 915. APPOINTMENT. Of executor or administrator, see "Executors ARGUMENT OF COUNSEL. See "Trial," § 3. In criminal prosecutions, see "Criminal Law," § 6. ARMY AND NAVY. See "Militia." ARRAIGNMENT. See "Criminal Law," § 3. ARREST. Illegal arrest, see "False Imprisonment." On execution, see "Execution," § 7. § 1. On criminal charges. The constitutional privilege of a legislator from arrest will be waived if he appears, voluntarily gives bail, and subsequently pleads, without pleading his privilege.-State v. Polacheck (Wis.) 708. The arrest of a legislator while constitutionally exempt is not void, since the exemption is a personal privilege only.-State v. Polacheck (Wis.) 708. Bribery is not a felony, within Const. art. 4, § 15, exempting members of the legislature from arrest in cases other than treason, felony, and breach of the peace.--State v. Polacheck (Wis.) 708. ARREST OF JUDGMENT. In civil actions, see "Judgment," § 4. Damages of $2,000 held not excessive in a civil action for assault and battery.-Barr v. Post (Neb.) 123. In a civil suit for damages for assault and battery, evidence of defendant's reputation is properly rejected.-Barr v. Post (Neb.) 123. In a civil suit for damages for assault and battery, evidence that defendant had never been arrested is inadmissible.-Barr v. Post (Neb.) 123. In a civil suit for assault and battery, where the answer is a general denial, evidence of justification is inadmissible.-Barr v. Post (Neb.) 123. $ 2. Criminal responsibility. Transfers of particular species of property, rights, or instruments. See "Bills and Notes," $$ 3, 4; "Chattel Mortgages," § 6; "Covenants," § 1; "Mortgages," § 5. § 1. Requisites and validity. An oral assignment of an account book and accounts therein, coupled with transfer of possession, held valid.-Preston v. Peterson (Iowa) 864. Evidence held to sustain finding that assignment under which appellant claims was made to secure a loan which had been paid.-Lytle v. Chicago G. W. Ry. Co. (Minn.) 975. in profits of land purchased by another_duty to A contract imposing on party having interest pay taxes held assignable.-Alden v. Geo. W. Frank Imp. Co. (Neb.) 369. § 2. Operation and effect. Assignment of contract construed, and held to be an assignment of the benefits of a contract, not a repudiation of its burdens.-Alden v. Geo. W. Frank Imp. Co. (Neb.) 369. § 3. Actions. Evidence held insufficient to show assignment of claim before garnishment of the same.Ackerson v. Svea Assur. Co. of Gothenburg (Minn.) 419. ASSIGNMENTS FOR BENEFIT OF CREDITORS. § 1. Requisites and validity. of Circumstances attending the execution mortgages by an insolvent debtor held not sufficient to constitute them a part of the general assignment made at the same time, but that they were separate and valid instruments.Creglow v. Eichhorn (Iowa) 526. Conveyance accepted in good faith, in payment of valid indebtedness, is not rendered void by fact that debtor intended it as part of assignment for benefit of creditors.-First Nat. Bank v. Garretson (Iowa) 856; Beloit State Bank v. Same, Id.; North Granville Nat. Bank v. Same, Id. An assignment with preference cannot be attacked by one who is not a creditor of assignor. First Nat. Bank v. Garretson (Iowa) 856; Beloit State Bank v. Same, Id.; North Granville Nat. Bank v. Same, Id. A chattel mortgage is not an assignment for creditors, within 3 How. Ann. St. § 87490, pro One assaulted has the right to repel force with viding that, if an insolvent makes such asforce.-State v. Goering (Iowa) 327. signment, a labor claimant may proceed in chancery to establish his as a preferred claim. -Wineman v. Fisher Electrical Mfg. Co. (Mich.) 245. Conveyance by a firm in good faith to secure certain debts held not an assignment for creditors, but a mortgage, and valid, though debtors were insolvent.-Dyson v. Johnson (Minn.) 236. the assignment law is not invalidated by a general assignment within 30 days, under Comp. St. c. 6. $$ 42, 43.-Blair State Bank v. Stewart (Neb.) 370. A transfer made without intention to evade An assignee cannot, without the written consent of creditors, assail a conveyance made by the assignor as in fraud of creditors.-Blair State Bank v. Stewart (Neb.) 370. A mortgage given to secure a debt, and in consideration that the mortgagee pay certain notes of the mortgagor, held not a voluntary assignment.-Cunningham v. Rodby (Wis.) 740. § 2. Administration of assigned estate. Laborers who work in coal mine, after a sale Fraud as to creditors, see "Fraudulent Convey- thereof by assignee for creditors, are not entiances," § 1. tled to preference for their claims out of pro ceeds of such sale in hands of assignee.-Haw | § 5. Levy, lien, and custody and disv. Burch (Iowa) 461. After a judgment against defendant assignee in replevin, held, that he had no lien on pro ceeds of the property, which had been sold pending suit by agreement, on account of expenses of administration or of caring for or selling the property.-Clark v. B. B. Richards Lumber Co. (Minn.) 213. An assignee stands in the shoes of his assignor, and a defense valid against the latter will be valid as to the former.-Dickson v. Baker (Minn.) 820. An assignee represents creditors only to the extent that he is expressly authorized so to do by statute.-Blair State Bank v. Stewart (Neb.) 370. Conveyances made more than 30 days before the execution of a voluntary assignment are not void, under Comp. St. 1897, c. 6, §§ 42, 43.Blair State Bank v. Stewart (Neb.) 370. § 3. Rights and remedies of creditors. Services of plaintiff in assisting defendant to get his storeroom ready, and in unpacking and marking goods and acting as salesman, are labor, within 3 How. Ann. St. § 8749m, authorizing suit by persons having preferred claims for labor. - Lawton V. Richardson (Mich.) 265. Services of plaintiff in going East with defendant, and assisting him in buying goods, are not labor, within 3 How. Ann. St. § 8749m, authorizing suit by persons having preferred claims for labor.-Lawton v. Richardson (Mich.) 265. ASSOCIATIONS. See "Building and Loan Associations." ASSUMPSIT, ACTION OF. A party damaged by defects in the article position of property. tachment only when it is against the person in Unrecorded conveyance held void against atwhose name the title to the land appears of record in the county in which it is situated.-Lyman v. Gaar, Scott & Co. (Minn.) 828. § 6. Proceedings to support or enforce. 2 How. Ann. St. § 7791, as amended by Pub. Acts 1895, No. 129, and Cir. Ct. Rule No. 1, held to authorize service of writ and inventory on defendant in a county where no property was seized, by the sheriff thereof, on the sheriff's inability to find him in the county where seizure was made.-Skeels v. Oceana Circuit Judge (Mich.) 996. § 7. Claims by third persons. where the property is taken from the attaching Remedy of an attachment creditor stated officer under a writ of replevin.-Shull v. Barton (Neb.) 132. § 8. Return. Allowing the sheriff to file an amended return of the attached property by adding the estimated value of the articles attached held within the sound discretion of the trial court. -Chaffee v. Runkel, Rowley & Co. (S. D.) 583. § 9. Wrongful attachment. Evidence of injuries to attached crops by stock of attaching creditor held admissible in action for unlawful levy.-Sigler v. Murphy (Iowa) 577. Evidence held to show right in plaintiff to maintain action for damages by unlawful attachment of land.-Sigler v. Murphy (Iowa) 577. Where goods of stranger are taken and sold under writ, and plaintiff, with knowledge thereof, receives the proceeds, he ratifies the levy.Omaha Nat. Bank v. Robinson (Neb.) 73. ATTENDANCE. purchased on express warranty may recover Of witness, see "Witnesses," § 1. in assumpsit.-Tatro v. Brower (Mich.) 274. ASSUMPTION. Of risk by employé, see "Master and Servant," § 6. ATTACHMENT. See, also, "Execution"; "Garnishment." ATTORNEY AND CLIENT. Argument and conduct of counsel at trial in civil actions, see "Trial," § 3. in criminal prosecutions, see "Criminal Law," § 6. Attorneys in fact, see "Principal and Agent." Misconduct of counsel ground for new trial, see "New Trial," § 2. Effect of proceedings in insolvency, see "In- § 1. Retainer and authority. solvency," § 2. Exemptions, see "Homestead." § 1. Nature and grounds. Attachment for future rent held authorized under McClain's Code, § 4170, though lessor reserved the right to sell part of the property on certain conditions.-Brown v. Cairns (Iowa) 478. § 2. Property subject to attachment. Under Comp. St. c. 8, when a bank examiner has taken possession of the assets of an insolvent bank, they are not subject to attachment. Andrews v. Steele City Bank (Neb.) 342. § 3. Proceedings to procure. Taking of affidavit of client by notary held an irregularity which may be cured by amendment. -Dobry v. Western Mfg. Co. (Neb.) 656. Affidavits held to sustain the burden of showing that an attachment on the ground that the debtor was about to dispose of his property was warranted.-Chaffee v. Runkel, Rowley & Co. (S. D.) 583. § 4. Writ or warrant. A writ held to have substantially complied with 2 How. Ann. St. § 7791, and Cir. Ct. Rule No. 1.-Skeels v. Oceana Circuit Judge (Mich.) 996. Authority of an attorney who actually enters an appearance will be presumed to justify him in so doing.-Missouri Pac. Ry. Co. v. Fox (Neb.) 130. § 2. Compensation and lien of attor See "Assignments for Benefit of Creditors"; 3. "Insolvency." BANKS AND BANKING. § 1. Banking corporations and associa tions. Where savings bank organized under Act 1867 did no business for 16 years, but was thereafter reorganized and its articles amended under Laws 1889, c. 233, and the name of the bank and its place of business changed, held, that the corporation had not been dissolved, and the new corporation was at least a de facto corporation. -Richards v. Minnesota Sav. Bank (Minn.) 822. In action by receiver on note given to bank for its stock sold, defendant cannot set up secret agreement with president that he should have option of surrendering stock and that he had done so.-Atwater v. Stromberg (Minn.) 963. An action held the exclusive action, in which not only the assets of an insolvent bank should be administered, but the liabilities of the officers and stockholders ascertained and enforced. Gager v. Bank of Edgerton (Wis.) 920; Appeal of Hartzheim, Id. Creditors of a bank held entitled to be substituted as plaintiffs instead of a stockholder who had commenced an action for the appointment of a receiver.-Gager v. Marsden (Wis.) 922. Where a creditor of an insolvent bank sues under Rev. St. 1878, § 3218, 3219, to close up its business, the liability of the stockholders and of the officers may be enforced.-Gager v. Marsden (Wis.) 922. § 2. Functions and dealings. A drawee bank paying a forged check to a holder for value and without notice cannot recover back.-First Nat. Bank v. Marshalltown State Bank (Iowa) 1045. That a holder of a forged check indorsed it subsequent to a forged indorsement does not entitle the drawee bank, on payment, to recover back from him.-First Nat. Bank v. Marshalltown State Bank (Iowa) 1045. Evidence held to warrant finding, not that a bank discounted a note, and then rediscounted it with plaintiff bank, but that plaintiff discounted the note originally.-Ft. Dearborn Nat. Bank v. Seymour (Minn.) 543. Fraud of a bank in discounting a note of a loan company on the faith of an unauthorized pledge of another bank's credit held injurious National banks. A national bank, after expiration of time limit of charter, continues capable of suing and being sued until its affairs are settled.-Farmers' Nat. Bank v. Backus (Minn.) 142. § 4. Savings banks. A savings bank is not liable for loss from its agent's negligence in taking a forged note at a sale at which the bank had contracted to act as plaintiff's agent in receiving notes, as the contract was ultra vires of the bank.-Willett V. Farmers' Sav. Bank (Iowa) 519. Trustees of savings banks occupy fiduciary relation to depositors. Dickson V. Baker (Minn.) 820. BAR. Of action by limitation, see "Limitation of Actions," § 3. BASTARDS. § 1. Property. Under Code 1873, § 2466, authorizing bastards to inherit where openly and notoriously recognized by the father, it is immaterial where the recognition takes place.-Van Horn v. Van Horn (Iowa) 846. Evidence held to show an open and notorious recognition, under Code 1873, § 2466. - Van Horn v. Van Horn (Iowa) 846. quirements of Comp. St. 1897, c. 23, § 31, as to Writings examined, and held not to fulfill reacknowledgment of illegitimate child.-Lind v. Burke (Neb.) 444. to the latter bank, though it parted with funds See "Gaming." BETTING. BILL OF EXCEPTIONS. See "Exceptions, Bill of." Where plaintiff bank acted fraudulently in accepting an unauthorized pledge of another bank's credit, the latter bank did not ratify the transaction because its officers and stockholders were negligent in failing to discover the fraud.-Ft. See "Bills and Notes." Dearborn Nat. Bank v. Seymour (Minn.) 543. Where draft for which depositor received credit was delivered for "collection and credit," BILL OF EXCHANGE. BILLS AND NOTES. and the credit was merely provisional, title to § 1. Requisites and validity. the draft did not pass absolutely to the bank. A note given in settlement of doubtful claims -In re Bank of Minnesota (Minn.) 796; South is valid if the maker had knowledge of all the facts at the time he executed it.-Morey v. Laird (Iowa) 835. Park Foundry & Machine Co. v. Chicago G. W. Ry. Co., Id. Where a mortgage was discharged by mistake, and afterwards a grantee of the premises gave the mortgagee a new note in consideration of the mortgage's being discharged, held, that the note was based on a sufficient consideration. Morrison v. Morse (Minn.) 561. Where savings-bank trustee took notes, in consideration of illegal agreement, payable to the bank, and transferred them to it, the bank stood in no better position than the trustee to whom they were given. - Dickson v. Baker (Minn.) 820. A note given for a promise void on grounds of public policy held invalid.-Dickson v. Baker (Minn.) 820. Note given to bank while a going concern, in consideration of delivery of its certificate for certain shares therein, held based on sufficient consideration.-Atwater v. Stromberg (Minn.) 963. Order by creditor on debtor in favor of a third person for portion of entire debt held inoperative, without acceptance by debtor.-Hopkins v. Washington County (Neb.) 53. Answer in action on note held to state no de fense.-State Bank of Ceresco v. Belk (Neb.) 58. Want of consideration is a good defense, except as against bona fide purchaser for value.Fellers v. Penrod (Neb.) 1085. Note of a third person for a debt owing by another in consideration of indemnity from such other held based on a sufficient consideration. Murphey v. Illinois Trust & Savings Bank (Neb.) 1102. A note held to have been executed without consideration.-Remington v. Detroit Dental Mfg. Co. (Wis.) 178. Cancellation of a decedent's notes constitutes a sufficient consideration for equivalent notes of his heirs.-Union & Planters' Bank of Memphis v. Jefferson (Wis.) 889. § 2. Modification and renewal. A note held to be a renewal of a surety obligation, and not the creation of a new and independent indebtedness. Merchants' National Bank v. Eyre (Iowa) 498. 3. Negotiability and transfer. A nonnegotiable note is assignable.-Barry v. Wachosky (Neb.) 1080. A note payable to party or order may be transferred by an oral or distinct separate written assignment, followed by delivery.-Sackett v. Montgomery (Neb.) 1083. A note otherwise negotiable is not rendered nonnegotiable because it provides for higher interest after maturity, or that, in case of default in interest, the holder may declare the whole debt due.-Hollinshead v. John Stuart & Co. (N. D.) 89. 4. Rights and liabilities on indorsement or transfer. Negligence of a purchaser of a forged check in failing to make due inquiry cannot be imputed to his transferee for value without notice. First Nat. Bank v. Marshalltown State Bank (Iowa) 1045. Bad faith in purchase of void bank check may be shown by gross negligence of purchaser and other circumstances. Drew v. Wheelihan (Minn.) 558. Question of plaintiff's bad faith in purchasing check in suit held, on the evidence, one for the jury.-Drew v. Wheelihan (Minn.) 558. Release of principal debtor from lien of judgment rendered on a note, without knowledge of accommodation indorser, discharges the latter pro tanto.-Drexel v. Pusey (Neb.) 351. Indorsement on back of note, preceded by words "Notice and protest waived," is notice that the liability is not that of a joint maker.— Drexel v. Pusey (Neb.) 351. Makers of nonnegotiable note held not liable on contract made by payee in assigning the same. -Barry v. Wachosky (Neb.) 1080. Payee of nonnegotiable note writing his name liable to the holder.-Barry v. Wachosky (Neb.) across the back, and selling the same, held not 1080. Payee of nonnegotiable note may render himself liable to his assignee by contract to that effect over his signature.-Barry v. Wachosky (Neb.) 1080. One purchasing negotiable paper for valuable consideration, in ignorance of facts affecting its validity, held an innocent purchaser.-First Nat. Bank v. Pennington (Neb.) 1084. To defeat recovery on note in hands of bona fide purchaser, it must be shown that he had knowledge of such facts as would evidence want of honesty in the purchase.-First Nat. Bank v. Pennington (Neb.) 1084. 5. Presentment, demand, notice, and protest. failure for 22 years to demand payment on a Where the parties all live in the same city, a demand note or notify the indorsers releases them.-Home Sav. Bank v. Hosie (Mich.) 625. § 6. Payment and discharge. Where a note is payable at a certain place, to make the owner or occupant of the place payee's agent the note must be indorsed to or lodged with him for collection.-Dwight v. Lenz (Minn.) 546. Where negotiable note indorsed in blank is delivered to agent for collection, payment to him in good faith held to discharge note, though made after death of principal.-Deweese v. Muff (Neb.) 361. Indorsee of negotiable note, with interest coupons attached, held not estopped, where maker paid principal to original payee, while note remains in hands of indorsee, from setting up indorsement or denying agency of payee.Hollinshead v. John Stuart & Co. (N. D.) 89. Maker of negotiable instrument cannot pay the original creditor after transfer, though he is ignorant thereof.-Hollinshead v. John Stuart & Co. (N. D.) 89. Payee of a note held not estopped to deny authority of a person to collect the principal because of his having collected the interest.Stolzman v. Wyman (N. D.) 285. The fact that a note is made payable at a particular office does not make the person in charge of the office an agent of the holder of the note to receive payment.-Stolzman v. Wyman (N. D.) 285. § 7. Actions. In action on note, an answer averring that creditor has collaterals, but not alleging that the debt has been paid, is not a good plea of conversion of collaterals.-Carson v. Buckstaff (Neb.) 670. compelled to exhaust collateral before suing Creditor holding note as collateral cannot be debtor on his original note.-Carson v. Buckstaff (Neb.) 670. In action on note, held no defense that plaintiff held note of third party as collateral security for a greater amount than note sued on.Carson v. Buckstaff (Neb.) 670. In an action on a note, when it is shown that one maker is the principal and the other his surety, the judgment should so state, under Code Civ. Proc. § 511.-Maxwell v. Home Fire Ins. Co. (Neb.) 681. Assignee of nonnegotiable note may sue thereon in his own name.-Barry v. Wachosky (Neb.) 1080. |